Legal Comment and So Forth

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Everyone needs to know about Privacy. The Law Society of Ireland is running a MOOC (Massively Open Online Course) on Privacy, featuring some of the leading experts in the area. I’ve already signed up, but will also be participating as a lecturer, discussing what you need to know about your rights to Privacy under the law. The course is essential for anyone with an interest in what Privacy means in the digital age. It’s free of charge and open to anyone. Click here for more information on this exciting and essential course.

As a general rule, the law places the obligation to replace or repair any faulty item on the retailer. This is in the Sale of Goods and Supply of Services Act, 1980. The 1980 Act applies specifically to consumers, because unlike business customers, we are not in a position to bargain with large companies such as phone companies. However, where it is explicitly provided for in the contract, some of the terms of the 1980 Act can be contracted out of. I haven’t seen our listener’s contract, but I presume that this obligation is explicitly excluded in it.

Meteor’s policy

Less than 28 days – device is faulty (excluding iPhone)

If you find that your phone or broadband device is not working properly you have 28 days to return it to one of our Meteor stores listed here. Exchanges and refunds of faulty phones (excluding iPhones) will be provided within 28 days of the purchase date and where the fault can be verified in store. All returns should be accompanied with a valid receipt, all packaging the phone came in, any associated accessories and the phone manual. Your manufacturer’s warranty will be deemed void should the phone be physically damaged (including moisture damaged). Please read the manufacturer’s manual for details of warranty T’s&C’s.

I contacted Meteor and they said the reason for this exclusion is that it is passed on from Apple themselves. The relevant section of Apple’s own Terms & Conditions is:

Apple’s Warranty

If you submit a valid claim under this warranty, Apple will, at its option:
(i) repair the Apple Product using new or previously used parts that are equivalent to new in performance and reliability, or
(ii) replace the Apple Product with a product that is at least functionally equivalent to the Apple Product and is formed from new and/or previously used parts that are equivalent to new in performance and reliability, or
(iii) refund your purchase price in exchange for the return of your Apple Product.

Apple are famous for wanting to keep everything in-house. They’ve been derided in the past as “control freaks” because of this. They don’t want just any old shop selling their products, and they certainly don’t want any old shop trying to repair them. So this system, where they take on the obligations of the retailer, is really just another manifestation of that attitude.

However, EU law can;t be contracted out of in this way, so the “cooling off period”, discussed by us before, still applies. You can bring your phone back to the store for any reason or for no reason, and get a full refund. You don’t have to send it to Apple:

Less than 14 days:
If for any reasons you are not happy with your new phone or broadband device, under the Consumer Information, Cancellation and Other Rights Regulations 2013 you have the right to cancel your contract by providing us with a clear written statement (letter by post or e-mail) to this effect, within fourteen days of the date you acquire possession of the phone or broadband device . You may use the notice published on the “Cooling off” section of our web site for this purpose. If you cancel your contract we will reimburse you all payments including costs of delivery, without undue delay and in no case less than 14 days from the date we are informed of your decision to cancel this contract. We will carry out the reimbursement using the same means of payment as you used for the initial transaction, unless you have expressly agreed otherwise; in any event, you will not incur any fees as a result of such reimbursement.”

For non iPhone customers, any faulty phone is the retailer’s responsibility.

Travel Insurance
I was contacted by one of the two insurers our listener had contacted (I mistakenly named Multitrip in the slot. In fact, it was Insure and Go, who were extremely helpful ) and they told me that they do not require customers to notify them of pregnancy until very close to the delivery date. Our listener is comfortably within that period. They also told me that while they don’t cover ordinary pregnancy health expenses, such as non-emergency doctors visits, they do cover premature births. So, in the event that our listener has her baby prematurely, not only will she be covered for the delivery, but care for the baby will also be covered. This is obviously very important to know, because premature babies usually do require significant treatment or at least hospital support. They told me that this cover has on occasion included arranging for a prematurely born child to be repatriated afterwards.
Most insurers will treat a premature birth as a medical emergency, so the cover will usually be the same, but there are conditions which can vary between providers. For example, I saw one that required that you get confirmation from a doctor that you are fit to travel no more than five days prior to the start of the trip. Others require only that you not travel against a doctor’s advice. In general, the cheaper the policy, the more strings attached, so be sure to get clarity on what you’re covered for before signing up.

2. We were in the property on the morning our clients moved in to note it was torrential rain and continued to rain like this for a couple of days. This always unsettles clients. We found the property to be clean neat and tidy and in good order.

3. Most pictures on the page were taken on that day.

4. We have been a rental agents for more than 20 years and know what to look for in an inspection.

5. When booking a traditional Irish cottage people should not expect it to be totally modernised. We keep a few on our books because people like them. We have plenty of modern properties that can be booked.

6. When we were contacted regarding the property we only had one property that we could move her to and this was refused. This was the middle of peak season. We felt the complaint did not merit a full refund

7. The complaint process was conducted in the correct manor (sic).

The description of the cottage on the website does refer to it as “a traditional Irish stone cottage” and mentions “free standing oil-filled Dimplex electric radiators” rather than any central or storage heating, so the owner can make a reasonable argument that all tenants have advance notice of the kind of place they are renting.

Photographs may be a different matter. They mention that most of the photographs on the site were taken the morning our listener moved in. If so, this means that the photos that our listener saw may have been out of date. If the house was very different from the one depicted on the website when you booked, you may have an argument that you didn’t get what you booked.

However, if, as they claim, you turned down a reasonable replacement, you may have no complaint. Of course this depends on whether the replacement was reasonable – if it was uninhabitable or smaller than your cottage, it probably wasn’t. If you turned it down because you just didn’t like it, then it probably was. Our listener says that they she was offered a replacement elsewhere in Connemara, 35 miles. That’s probably not a reasonable replacement.

As a general rule, where you are not happy with a holiday rental, you should:

Don’t wait until the end of your holiday to complain. You should complain to your accommodation manager, owner or local rep as soon as you realise there’s a problem.

Where possible, put your complaint in writing. The best way to do this is by email, because an email contains a time stamp, so you can prove you sent it in time.

Take photographs – it’s much harder for an owner to claim the premises were in good condition when you have photographs of mould, dirt, broken windows, etc.
In this case, as in any other, the question is how bad was it? There’s a scale that runs from mildly disappointing to completely unfit for purpose, with a lot of grey area in between. The problem with holidays is that even a mild disappointment can ruin the whole holiday. However, in order to have a legal case, you need to be able to say that you didn’t get what you paid for, to such a degree that that there was a breach of contract.

A contract for a holiday letting is completed on your arrival – if you refuse to take occupancy you may be able to walk away from the contract, though you will still need good reason for doing so. However, you may lose any deposit paid.

There’s always an element of unpredictability with holiday lettings, so where possible try to book from sites that allow user reviews, such as trip advisor. These sites often have visitor photos which are often more candid than owner photos, and will give you a better idea of what the place is really like.

Cleaners

The email from the cleaners regarding insurance is a red herring – if they or their staff broke something of yours, they are required to replace it or pay the value. Whether they have insurance or not is no concern of yours.

They seem to have changed their mind about this later because our listener mailed us back as follows:

So this is what happened…
I went into Brown Thomas and told them the story and they very kindly printed me out an insurance valuation receipt which had the cost of the item on it, as it turns out it was €100 not 80 as we had originally thought. (Many thanks to Magda and Anne in Brown Thomas Cork who were lovely and went out of their way to help me!)

I emailed on this to the cleaning guys yesterday and got an email back asking me for photos of the broken item (really!! They broke it so they’ve already seen it!!), I also missed a phonecall from them all immediately after I sent my email. Within a few minutes I then (having not responded to phonecall or email in meantime) received the following text;

Hi
I am sorry about broken item.
The cost of cleaning is €90 so we owe you €10. It will be with the invoice.
Sorry again
Kind regards

As of yet we have not received this invoice or €10, the cleaning was done last Friday.

I’m not sure how it would have gone had I not been given the valuation receipt, it would be good to know what my rights are had we not gotten a receipt for them!

This is pretty straightforward – they broke it, they have to pay for it. The receipt isn’t really a factor, except that it’s a way of verifying the cost. You could as easily go online and find the cost there, it shouldn’t make any difference to the cleaning company.

Again, it’s important to complain right away, and to take photographs. Our listener seemed a bit put out at being asked for photos, but remember that the person writing the cheque is not the same as the one who was in your house, and they need to verify that the accident actually happened.

One thing to remember though is that not all cleaners are employees. There are services which have started up recently based on the Uber model – they facilitate cleaners who are operating as sole traders, so there’s also the question of how comfortable you are with taking the money directly from the cleaner rather than the company, and whether you are willing to take them to court over it.

This week’s topic on the show is one that really gets people going – vehicle clamping. This was the email we received from a listener:

Hi Anton,

Yesterday morning I awoke coughing up blood. I have Cystic Fybrosis, and this is one of the unfortunate effects of the illness that can occur. But when it does it is best to be on the safe side, so I arranged with the nurse in the CF Unit in Limerick Regional Hospital to be admitted that afternoon. I’m 21 years old and not living with family members as I am renting a room near my place of work, so I chose to drive myself. I arrived shortly after 2pm, but when I entered the hospital grounds it became clear there were no parking spaces in any of the Hospital car parks. Each one had a queue of around 5-10 cars. Since my appointment to get my x-ray and picc line inserted was at 2:30pm, I decided to park in a next door car park behind a petrol station. I figured if I paid for 2 hours parking there, it would give me enough time to have my procedures done and get admitted into my room and then return to the car and bring it inside the hospital grounds (as the car parks would be quiter by then). So at 2:18 pm, I paid for my ticket and placed it on the dashboard and continued on to the hospital.

An admission is usually quite a stressful day as it is. There can be long periods of waiting. The picc line isn’t the most pleasant procedure, it involves inserting a small tube going from your arm to your heart to administer anti biotics directly to your veins. So after all of this is done, you want to sit down in your room and relax. But I first had to go back for my car. I got back to the car park where my car was parked just after 4:15pm, perfect timing as my ticket expired at 4:18pm. Or so I thought. When I got there I saw some notices on my car and a big yellow clamp on the front wheel. I’m generally not a person who loses his temper easily, so I stayed calm. I checked the dashboard and the ticket wasn’t there, it had fallen on to the front drivers seat, maybe from a gust of wind. Since the ticket was still there and valid I figured it was just a misunderstanding, and that if I called them up they could sort it out once I explained the circumstances.

The company responsible for the clamping are called NCPS, National Controlled Parking Scheme. Bear in mind that due to this specific car parks location, the majority of people parking there would be going to the hospital. Whether it be patients, visitors, outpatients etc. Sick people, people going through hard times, possibly having family members in a ward. Vulnerable people. I have no doubt that this is why the clampers pay so much attention to this specific location.

I called them up, and while the first person I spoke to was very polite and nice, it became clear that he was not going to approve removing the clamp unless I paid the fine. He said that because the ticket had fallen onto the seat it was no longer “clearly visible”, therefore the clamp was valid. I decided to consider my options first, so I said I would ring back and ended the call. I consulted with some of the nurses on my ward but couldn’t really see any alternative myself other than to pay it. The longer I left the car there the more chance they would try add extra charges. They suggested trying to speak to a supervisor this time when I rang.

The supervisor I spoke to was not as nice as the first employee I spoke to. His tone was quite impatient, and he seemed to have no interest in listening to the circumstances of the clamping. As far as he was concerned the clamp was not being removed unless the fee was paid. I felt I was getting no where, and wanted to get my car into the hospital so I could bring in my bags and medicines, so I payed the fine. The driver who had clamped the car came and removed the clamp within minutes. I was not at the car at the time, so didn’t get to speak to him or hear his opinion.

I’m writing this from my hospital room the morning after, still bitter about the encounter. The supervisors lack of empathy really struck me. He said he can not remove the clamp unless the fee was paid. I checked their website it said that the clamp could be removed without fee under “extreme circumstances”. I’m wondering would I have had to collapse while going back and forth to my clamped car with my severely damaged lungs for them to consider it extreme circumstances.

I hope this email helps aware people on the dealings of some of these privately owned companies. Taking money from the sick is far more important to them than maintaining any sort of integrity or decency. Worse is that these clamping companies are not regulated at all. They are privately owned and therefore not subject to regulation from the Council Traffic Department. They can clamp any car they wish, charge any fee they like, and nobody can do a thing because they make their own rules without regulation.

Clamping in public places has been common for quite some time. Generally, although nobody likes it, people understand that it’s needed in order to keep parking spaces available and to prevent abuse. There’ll always be hard cases, where people arrive back just as the clampers pull away, or where they’ve “just popped into the shops for a few minutes”, but people generally see clamping as a necessary evil.

What really annoys people is private clamping. Nobody likes that sense that the clampers are making money out of inconveniencing them, or the idea that there is no real public purpose being served.

Until recently, clamping on private land (including hospitals) was completely unregulated. This led to a lot of stand-offs where the owner refused to pay (for, e.g where there wasn’t enough signage to indicate that clampers were operating) and the clamper refused to remove the clamp. Gardaí often ended up being called, but couldn’t do much to intervene, as this was essentially a private property dispute – the landowner and the car owner both having rights over their respective property. There were also reports of “rogue clampers” essentially holding cars to ransom, even where they were perfectly legally parked. In theory (although I doubt anyone ever tried this out in practice – except maybe a lawyer) you could sue a clamper for “detinue”, the wrongful taking of personal property. Of course their defence would be that they were defending their property from unauthorised trespass.

Thankfully there is now some regulation, so that at least there is a bit more certainty about your rights. The Clamping Act, 2015 recently passed the Oireachtas. At committee stage, Catherine Murphy proposed that it ban outright the use of clamps on Hospital ground. The minister, Pascal O’Donoghue, rejected the amendment. In the UK, clamping on all private land is illegal. The rationale for not banning it here seems to be to allow property owners to defend their constitutional property rights – though of course the motorist also has property rights to defend, and there are plenty of restraints on property rights in the public interest.

The new law does require that clamping can only occur where there is prominent, clearly visible signage, displaying the clamp release charge, the tow-away charge and any other charges that might apply. It also sets maximum fines for private clampers of €100 for clamping plus €50 for tow-away. The NTA also has the power to set different maximums. It also bans the clamping of ambulances, which believe or not, has happened in the past, preventing seriously ill people from being taken to hospital.

It also requires that there be an appeals process in place, first to the parking controller (which would be the car park in this case) and then to the National Traffic Authority.

I contacted the HSE to see whether hospitals had set up any appeals process. It would seem that the most logical way to deal with this in hospital car parks would be to come up with a single appeals process at HSE level for all hospitals. However, the HSE say that hospitals have a variety of owners, so its up to them to put in place their own appeals processes. I would be surprised if all, or even most of them have done so yet, bearing in mind the Clamping Act was only passed in May (Limerick Hospital have promised to get back to me with a statement regarding the situation in their car park prior to tomorrow morning’s show)

At present, many of the private car parking operators already operate a two stage appeals process not unlike the one envisaged under the clamping act. They say that about one in four of those cases that reach the second stage are given full or partial refunds, but that very few people (under 5% of all clampings) actually pursue appeals. This may be because people might feel harshly dealt with mat the time, but ultimately realise that “I was only a few minutes late” isn’t a ground for appeal, and don’t pursue the matter (there’s a fee for pursuing the second stage appeal).

The Clamping Act comes in response to many complaints about the manners and attitude of clampers, and allows for complaints to be made to the NTA about how clampers go about their jobs. But without a Code of Practice in place (the NTA say it will come at the end of this year at the earliest) it’s hard to see what practical effect a complaint can have.

Also yet to come from the NTA are regulations on how long a vehicle must be be parked before it’s clamped, how long again before it’s towed, and how long it should take to get the clamp removed.

Another familiar topic for me this week – Employment law. This was our listener’s email:

Dear Fergal, could you please help. My wife worked in a local hotel in a small town until leaving recently. It’s three weeks since she left and the owner refuses to pay her the holiday money she is owed and wages she has earned and badly needs right now. Do you have any advice? If she finds out I wrote to your show she will probably die of embarrassment but she really needs the money and I find this very unfair

Non-payment of wages and Employment rights generally
If you lose your job you have certain rights and entitlements including the right to be paid for work you have done and holidays you have earned. If you have not been paid by the date of dismissal or if you are still owed some wages, you have a legal entitlement to be paid them. The Payment of Wages Act 1991 regulates how your employer pays you, establishes your right to a payslip and states what legal deductions your employer can make from your pay. A non-payment is an unlawful deduction.

You can make a complaint, within 6 months. Use the “Single Complaint Form” available from http://www.workplacerelations.ie. The case will go to a Rights’ Commissioner, and will be fairly straightforward – you need only prove two things, that you worked the relevant hours, and that you didn’t get paid. It’s a good idea to keep any payslips, timesheets, etc, or to print out any work emails or other correspondence that show that you were working on the days in question.

Other Employment Rights

Many of these rights are limited to employees, so if you are freelance, or an independent contractor, they might not apply to you. There’s no strict rule on what makes you an employee, but important elements include whether you are on PAYE, whether you are registered for VAT, whether you are allowed to work for other people, how closely you are supervised. If you’re not an employee, there may be solutions available to you, just not under Employment law.

The right against unfair dismissal/constructive dismissal.

Unfair dismissal can be unfair either because it was for no good reason, or because it was done without giving you fair procedures during and in the lead-up to the dismissal process.
Constructive dismissal is where you are forced out of your job. You resigned, but only because you were given no real choice.
You are also entitled to the proper notice when dismissed. This can be anything from 1-8 weeks, depending on your length of service. Payment can be given in lieu of notice.

Paid Holidays

20 days per full year worked (less if you don’t work the full year.
A paid holiday on all Bank Holidays, or else a paid day off within a month, an additional day of annual leave, or an additional day’s pay.

Working Hours

The maximum average working week is 48 hours. This does not mean that it is prohibited to work more than these hours in any week, nor does it mean that one can stop work when you have worked 48 hours in a week. However it means that on average your working time should not be greater than 48 hours over a period of 4 months.
11 hours daily rest in each 24 hour period. This means that there must be 11 hours between the time you finish work and the time you start again.
1 period of 24 hours rest per week preceded by a daily rest period of 11 hours. This means you must have one day off per week
Rest breaks during work of 15 minutes after 4.5 hours have been worked; 30 minutes where up to 6 hours have been worked which may include the first break.
Zero Hours Working
“Zero hours contracts” require staff to be available for set hours each week, but with no guarantee they will get any specific amount of work. They are very common (and controversial) in the UK. The term was used quite a lot in relation to the Dunnes Stores dispute, but under Irish law, employees must be paid for at least 25% of the hours they are required to be available, whether they work them or not, so Irish employers tend to use “low-hours” contracts, where an employee might be guaranteed 15 hours with the possibility of more. However, there is no rule requiring those hours to be predictable, or saying how long a low-hours contract can go on for without. This gives the employer huge flexibility, and ensures a workforce that is unlikely to complain about anything unless they want their hours cut. In the wake of the Dunnes Stores dispute, there may be the political will to change the law in the area.

Bullying/Harassment

As with any form of victimisation, if you can show that bullying is discriminatory in nature, you may have a claim under Employment Equality. So if you are abused or insulted in ways that relate to your age, ethnicity, gender, sexuality, family status, or membership of the traveller community, it may constitute discrimination. The same goes for inappropriate interview questions.
Ordinary bullying is a grey area in the law. Where it causes you significant stress (ie illness, rather than mere unhappiness) you may have a case against the employer. Where you have brought the bullying to your employers’ attention and they have not acted, this will strengthen your case. However, bullying is subjective, and what is experienced as bullying from one perspective may appear harmless from another. A more useful remedy than suing may be to refer the matter to the Labour Relations Commission’s conciliation and mediation services.

Maternity Leave

You are entitled to return to your old job or an equivalent on after the conclusion of your maternity leave. Any dismissal by reason of your pregnancy will be an unfair dismissal.

Redundancy

On redundancy, you are entitled to two weeks’ pay per year of service, plus one week. Some employers pay more than that, but they are not required to.
Voluntary redundancy is entirely at the discretion of the employers. You can challenge a decision to make you redundant, but there is no means to challenge a decision not to make you redundant.

Time Limits

Most complaints have to be made within 6 months of the incident. Don’t let your employer run down the clock by delaying. If you don’t complain in time, you can’t pursue the matter.

My second outing in the Consumer Slot saw me on familiar ground – Family Law. This is the email we got from a listener:

I desperately need your advice.

After 16 years my husband and I are splitting up. He has had an affair and has moved out since the 1st march. He is in a house on his own (rent 380 a month)

We have a 7 month old baby boy who lives with me. My husband has not seen him since the 24th may – his choice.

We are now going to mediation to try and sort out finances and assets. I have a solicitor.

My question to you is regarding the house – what are my options.

As I’m working I am probably worse off!! I take annual leave Monday,parental (unpaid) Tuesday and work wed,thurs,fri.

Will I have to sell the house? Or buy him out and try and get a mortgage in my own name.

I am so worried about it. Any advice or help you could offer me would be appreciated.

And here are my notes on the show:

You are entitled to maintenance in respect of the child and possibly for yourself. There is no ceiling on the amount of maintenance that can be awarded, but the District Court can only order €150 per child or €500 spousal maintenance. If you are seeking more than that, you need to go to the Circuit Court. Of course there’s nothing to prevent you both from agreeing any amount of maintenance, without going to court.
While Child Maintenance is almost always ordered, courts are slower to award spousal maintenance, especially where both parties are working. In reality though, courts understand that the money all goes into the same household pot anyway.

You can apply for maintenance at any time, i.e. you don’t need to wait until the divorce proceedings. If you are in financial difficulty, you should apply right away, so that you can get some maintenance while you wait for the divorce to work its way through the courts. The same goes for access. You’ve said your husband doesn’t want to see your child, but if he wishes to he is entitled to apply to the District Court for an Access Order. Again, this is something that can be agreed between you without going to court.

Ireland has a no-fault divorce system, so the court will not be concerned with the break-up of the relationship, but with the future – what happens to the children, what happens to the house, ensuring that proper financial provision is made for all parties involved. The person who has custody of the child (i.e you) is often granted the right to live in the house until the child is no longer dependent (i.e. 18th birthday, or graduation from full-time edication). After that, there may be a case for selling the house, or for one of you buying the other out. That might include an examination of how much equity each of you has in the home – which will depend on how much money each of you paid towards the mortgage payments, the deposit, and the expenses of the household in general.

The arrangements for houses, mortgages, etc vary from case to case. The most important factor is how much the parties are earning. Both parties are required in a divorce to draw up an “affidavit of means” giving details of their income, expenses, assets and liabilities. The court will want to ensure that both parties can support themselves and any children in their custody, so they won’t order a bigger financial contribution than your husband can afford. On the other hand, where people are working and earning, they are required to support their children, which includes putting a roof over their heads. Sometimes, for e.g. where the house is quite large and valuable, courts will decide that the best way to use the equity is to sell the house and split the proceeds between the parties, allowing both to buy new homes. Courts often don’t like uprooting children from a family home, but given that your child is only a baby, that isn’t as big a concern here.

Any final settlement will take all the circumstances into account, so the amount of maintenance he has to pay will be influenced by the amount of the mortgage payments. If you can afford to buy him out, that would involve paying him a lump sum for the equity he owns in the house, and then removing him from the mortgage going forward. Against that you would have to weigh the maintenance the court believes he should pay – the court will look at the big picture. At any point if your financial situations change, i.e if either of you becomes significantly more or less wealthy, you can return to court to vary the maintenance arrangements. As your child gets older, various new expenses (school fees, etc) will arise, as well as the usual effects of inflation.